The Great Repeal Bill: the neoliberal assault on democracy and human rights

The Great Repeal Bill grants May’s ministers the power to rewrite reams of British law without democratic oversight. Not only will there be no longer an equivalent to the Francovich ruling. The Great Repeal Bill will also diminish human, civic, social and environmental rights. It will considerably strengthen the position of the executive. A British Bill of Rights and “free” trade deals will replace the Human Rights Act and the jurisdiction of the European Court of Justice. Agreements will empower global corporations to sue the government in secret courts any time ‘state regulation’ stands in the way of corporate profit. It is the neoliberal assault on democracy and human rights in full action.

Currently, the UK government can be sued under the European Court of Justice’s 1991 Francovich ruling. According to this ruling, a member state is liable if an individual or business has been damaged because of a failure by the country to implement EU law. The Repeal bill contains a clause stipulating that there is no right in domestic law after exit day to damages caused by the government. Given the peculiarity of the UK’s political system, this creates an enormous void.

The Tories act as if the Great Repeal Bill is just a tedious administrative errand: the executive will make a selection of EU law and incorporate what remains into UK law. In truth, as Nick Dearden from Global Justice UK writes, the repeal bill amounts to the single biggest legal project in British history. Fundamental rights and powers of citizens will be scrapped (see here). According to Global Justice UK, the Great Repeal Bill awards the government powers that no modern government has ever enjoyed in peace time.

There lurks even more legal trouble on the horizon. It is not even clear if a repeal bill suffices to repeal EU law, not even if parliament approves it, as UK judges have altered the principle of parliamentary sovereignty by ruling that incorporating EU law is a constitutional act and that, therefore, only a later constitutional act can repeal it. The value of this legal argument and its political potency is for the moment unclear.

All of this is so extra complicated and highly problematic because the United Kingdom does not have a constitution in the same sense as most other countries (see here). There is no constitutional court which tests the constitutionality of the law. A citizen cannot sue the government on the basis that a law is unconstitutional. If a judge rules on a specific law, she cannot suspend it or send it back to parliament, as in most other countries.

The Human Rights Act

The Human Rights Act is also in danger. The European Convention on Human Rights (ECHR) obliges all signatories to respect human rights (see here). It precedes the EU by decades (it was drawn up in 1950). The UK incorporated the convention into domestic law through the Human Rights Act (1998). The Human Rights Act guarantees UK citizens the opportunity to defend themselves in domestic courts under rights granted them by the ECHR (see more here).

If the UK leaves “the EU” and replaces the Human Rights Act by a hotchpot of ‘British Rights,’ it breaks the links between British courts and the ECHR. In the future, UK citizens will have to bring their human right cases to Strasbourg, making the process substantially more difficult. If the UK drops out of the Council of Europe, the jurisdiction of the ECHR will be gone completely. This, it should be remembered, was one of May’s intentions, when, last year, she was campaigning against the Brexit. As May said, “It isn’t the EU we should leave but the ECHR and the jurisdiction of its courts” (see here).

The Repeal bill opens up an almost unfathomable can of worms. Already today, some legal practices openly violate the Human Rights Act. The most perverse evolution is the gradual extension of secret courts, known as closed material procedures (CMPs), into civil courts. Originally, CMPs were used to deal with information of which full public exposure can endanger the national interest, for example in terrorist cases (see here). This is highly problematic in itself, because the ‘special advocates’ that plead in these courts are not at liberty to give their clients precise details of the evidence. The result is that the accused may not be aware of all the allegations that lead to a conviction (see here). However, today CMPs are being increasingly used in employment tribunals, immigration appeals and tribunals handling complaints about the intelligence services (see here). The question of how this dark situation will evolve once its main legal obstacle, the Human Rights Act, no longer exists is frightening.

What comes in its place?

The trade deals that Liam Fox is currently negotiating all push for more deregulation and for less rights for the citizenry. TiSA is one example (see here). TiSA’s aim is the complete liberalisation of services (finance, insurance, telecommunication, transport, energy services, education and health care). TiSA has a “ratchet clause” which makes the privatisation of services effectively irreversible, as it forces countries to ensure market access to foreign companies in perpetuity (see here). Corporate lobbies in the UK and elsewhere are seizing the opportunity to push the agenda of financial deregulation, privatisation of public services, undermining workers’ rights and the expansion of unaccountable trade tribunals (see also here).

These “courts”, formally known as Investor State Dispute Settlement (ISDS), already exist in many ‘investment agreements’ (see here). Many countries have already been sued, for example for placing a moratorium on fracking or removing toxic chemicals from petrol. There is no appeal. The British government has been one of the most vociferous in the world in putting the case for such courts (see here).

American-British future trade deal negotiations are currently taking place in secret, just as was the case with the aborted (for now?) transatlantic and trans-Pacific trade agreements (TTIP and TPP). As British citizens will lose their ability to hold the government to account in court, foreign multinationals will gain rights to sue the government in secret arbitration courts whenever a multinational argues that ‘state regulation’ damages their profits (see here).

This is the neoliberal assault on democracy, or what remains of it. The Conservatives hail the opportunity to strip away “burdensome regulation” (see here). Fleet Street is selling this usurpation of democracy as “taking back control.” The Tories see the great repeal bill as an opportunity for a bonfire of EU rules, to finish the job launched by the domestic deregulation of the 1980s. Liam Fox has declared that “We must begin by deregulating the labour market. Political objections must be overridden.” Priti Patel has expressed the hope that the newly emancipated UK will “halve the burdens of the EU social and employment legislation” (see here). One of May’s close allies, George Foreman, opposes employment rights, paid leave, equal pay for women and the minimum wage. Corporation tax should be 10%, after the first three years in which new corporations would pay no tax and would be exempt from almost any employment regulation. Consumer protections will also be trimmed. Official documents reveal the intention of the government to “scale down” climate change measures in order to successfully negotiate post-Brexit global trade deals. A concomitant danger is the looming power-grab by Westminster at the expense of the devolved assemblies in Scotland, Wales and Northern Ireland (see here).

The acquis of EU law amounts to some 12.000 regulations and 7.900 statutory instruments that the UK uses to implement directives. There some 186 Acts between 1980 and 2009 which incorporate EU directives. This amounts to hundreds of thousands of pages of legal text, making the repeal a gigantic project. It has to be finalised in a very short timetable, as the clock set in motion by invoking Article 50 is running. Therefore, the government argues that “a balance will have to be struck between the importance of scrutiny and the speed of this process” (see here).

Ian Dunt from politics.co.uk writes that plenty of concrete actions could be envisaged, if the government would mean it with democracy (see here). For example, the legislation could only be changed with a full Act of Parliament. The government could invite outside bodies, think tanks, charities and unions, to sit with MPs on panels. But the government is not interested and there is ‘no time.’

It is using “statutory instruments” instead. This is a tedious and boring subject, but this is too is politics and part of the ‘plan’: the more complicated and impenetrable the whole process becomes, the less likely the public are to try figuring it out. As Dunt explains, statutory instruments are essentially useless (see here). An MP can either file a motion herself or convince the leader of the opposition to file one. In reality, none of these procedures have concrete political effect (see here). The motions usually die a lonely death, because – almost unimaginably for a modern state – the government sets the agenda in the House of Commons. It is not going to allocate time to anything that challenges its executive authority. If the leader of the opposition files a motion, the government can neutralise it by setting up a legislation committee. According to Dunt, such committees are even barely a talking shop: they have no real power (see here). Only one structural focus of legislative resistance remains: the House of Lords. Ironically, the Lords battle against a perceived lack of democratic legitimacy (see here).

And so the game is up. The government is writing up the Great Repeal Bill. The parliament has no role in the process. No consultations will take place. The Bill will be pushed through the House of Commons, as rejecting it will effectively amount to killing the Brexit, which both main parties, for the moment, support. The rhetoric notwithstanding, Labour’s position is unclear. If Labour will evaluate the final result according to the Starmer tests, as it (sometimes) says it will, Labour will ultimately oppose the Bill. But the Tories can always bribe the DUP with another billion of Pounds to get a majority in the House – unless some Tory MPs revolt. This might very well be what Labour is waiting for.